The CASE Act – The Big Value of Small Returns

Representatives Hakeem Jeffries and Doug Collins introduced the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act), H.R. 2426, on May 1, 2019. The Senate version of the bill, S. 1273, was introduced by Senators John Kennedy, Thom Tillis, Dick Durbin, and Mazie Hirono; and the bill passed through the Senate Judiciary Committee on July 18, 2019. The CASE Act was created in response to a study by the U.S. Copyright Office titled Study Report on Remedies for Copyright Small Claims, released in September 2013.

The bill would establish a small claims copyright court within the Copyright Office so that copyright owners can pursue infringement cases where damages are too low for cost-effective litigation in federal court. Visual creators’ organizations have been asking for this recourse for well over ten years due to the fact that copyright infringement is an endemic issue with no current recourse for independent creators.

There are many businesses that have been built on the model of not paying for images they use. Licensing images — certainly for commercial reproduction and display — is a standard and customary business practice for creators and users. It is the cost of doing business, as well as a legal obligation. Using images without permission and without paying a licensing fee to copyright owners is simply stealing. It’s no different than stealing a car, jewelry or anything else. Unfortunately, businesses engaging in infringement have been able to get away with not paying because they know that small businesses and independent creators cannot afford to file a lawsuit in federal court for lower-value licensing fees and damages.

The result? Creators who are trying to earn a living from their work suffer death by a thousand cuts with no practical legal recourse to stop the bleeding. Image theft has devalued our creative product to the extreme. The thought process has become “Why pay for something that can be stolen without recourse?” The internet is populated with stolen images that drive traffic to commercial sites, while image creators reap no financial benefit from those who drive the traffic or those who sell the goods or services. More traditional businesses observe this trend and take advantage of the infringing activities, believing they too can steal without recourse. Some websites and businesses base their entire model on unauthorized use of copyrighted works.

What can be done about rampant infringement and the toll it takes on independent creators? That’s where the CASE Act comes in. This legislation would create a simplified and less costly alternate dispute resolution process for creators and copyright owners to recover the licensing fees owed to them by those who’ve illegally used their photos, illustrations, graphics and any other creative work or assets. The proposed small claims court would also serve notice to the business community that there will be a low-cost legal opportunity for creators to enforce their ownership and copyrights, and to underscore the value of their creative works. In 2012, England and Wales established a Small Claims Track for low-value copyright infringement cases. It’s working. It motivates settlements between the parties, and most claims don’t proceed to a hearing. The CASE Act would do the same in the U.S.

Unfortunately, there are some detractors of the CASE Act. These organizations oppose the bill because they want to maintain the status quo. But for anyone who takes time to read about this critical legislation, it’s crystal clear that it would level the playing field by empowering creators and small businesses to protect their work.